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2024 Supreme(Guj) 221
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, SAMIR J. DAVE, JJ.
ANIL @ MARI S/O ASHOK PATIL – Petitioner
Versus
COMMISSIONER OF POLICE OF CITY OF SURAT – Respondent
Special Civil Application No. 17818 of 2023
Decided On : 25-01-2024
Advocate Appeared:
For the Petitioners: KAMLESH KACHHAVAH, SAMIR B. BUNDELA.
For the Respondent: PRANAV DHAGAT.
The main legal point established is that the right to make representation is a fundamental right of the detenu under Article 22(5) of the Constitution, and the supply of illegible documents for representation renders the order of detention illegal.
Headnote:
Habeas Corpus - Detention under Gujarat Prevention of Anti Social Activities Act, 1985 - Section 3(2) - Summary of Acts and Sections: The court discussed the nature of the offenses, the bail granted to the petitioner, the legibility of documents for representation, and the subjective satisfaction of the detaining authority. The key legal provisions interpreted include Article 22(5) of the Constitution and Section 9(2) of the PASA Act.
Fact of the Case:
The petitioner challenged the detention order under the Gujarat Prevention of Anti Social Activities Act, 1985, based on two FIRs registered under the Indian Penal Code. The petitioner argued that the offenses did not disturb public order and that the documents for representation were not legible.
Finding of the Court:
The court found that the nature of the offenses did not disturb public order, the documents for representation were not legible, and the detaining authority acted mechanically without proper consideration.
Issues: The issues involved the nature of the offenses, the legibility of documents for representation, and the subjective satisfaction of the detaining authority.
Ratio Decidendi: The court held that the offenses did not have a nexus with the breach of public order, the illegible documents deprived the petitioner of the right to make effective representation, and the detaining authority's subjective satisfaction was vitiated.
Final Decision: The petition was allowed, and the impugned order of detention was quashed and set aside. The detenue was ordered to be set at liberty forthwith if not required in any other case.
JUDGMENT :
A.Y. KOGJE, J.
1. This petition under Article 226 of the Constitution of India is inter-alia filed for following prayer:
“(A) This Honourable court may be pleased to issue a writ of Habeas Corpus or writ of certiorari or any other appropriate writ, order and/or directions quashing and setting aside the detention order dated 07.09.2023 passed by the Respondent No. 1 (Annexure A to this petition) and further be pleased to direct the respondents to release the petitioner detenue from the detention forthwith.”
2. The present petition is directed against order of detention dated 07.09.2023 passed by the respondent-detaining authority in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Act”) by detaining the petitioner-detenue as defined under section 2(c) of the Act. The challenge is to the order of detention dated 07.09.2023 by which the petitioner has been detained as a ‘dangerous person’ based on two FIRs registered under the Indian Penal Code offenses at Limbayat Police Station.
3. Learned advocate for the petitioner submitted that the nature of offense in which the petitioner has been arraigned as an accused and relied upon by the detaining authority are of such nature which cannot be termed to be disturbance to public order, but rather an issue where the ordinary law is sufficient to take care and therefore, the petitioner on such cases could not be detained. Learned advocate submitted that the petitioner has been enlarged on regular bail and both the time, the bail has been granted by the concerned police station and therefore, the act of the petitioner cannot be stated to be such which has caused disharmony in public.
3.1 Learned advocate submitted that many of the documents supplied to the petitioner are not legible and therefore, the fundamental rights of the petitioner to make representation against the order of detention, the petitioner was unable to exercise the same. Learned advocate lastly submitted that the petitioner has not been named in the first FIR, whereas he has been thereafter, arraigned as an accused however, there is no evidence connecting the petitioner as there is no identity of the petitioner which is on the record of the proposal.
4. As against this, learned Assistant Government Pleader has objected to the grant of the petition on the ground that the petitioner has been arraigned as an accused in two offenses of IPC which fall under Chapter 16 and 17 and therefore, clearly falls under the definition of dangerous person.
5. Heard learned advocates for the parties and perused the documents placed on record. The petitioner has been detained by the impugned order dated 07.09.2023 as dangerous person by the detaining authority namely Police Commissioner, Surat City. The grounds of detention would indicate that the detaining authority has relied upon two offenses registered with Limbayat Police Station, details of which are given in tabular form as under:
| S. No. | Police Stand and C.R. Number and Sections | Date and time of offense | Date and time of arrest | Date of bail granted |
| 1. | Limbayat Police Station C.R. No. 11210025233564 324, 504 of the IPC and Section 135(1) of the GP Act | 28.08.2023, 11:30 | 04.09.2023, 22:30 | 05.09.2023 |
| 2. | Limbayat Police Station C.R. No. 11210025233620 323, 294(B), 506(2) of the IPC | 03.09.2023, 20:30 | 05.09.2023, 15:30 | 06.09.2023 |
6. Upon perusal of the documents annexed with the grounds of detention, it appears that the petitioner who was arrested as an accused in first offense on 04.09.2023 was released on bail by the concerned police station on 05.09.2023 and in connection with the second offense he was arrested on 05.09.2023 and released on bail on 06.09.2023. Considering the fact that the police authority itself has enlarged the petitioner on bail aft
